DISENTANGLING THE ELEVENTH AMENDMENT ... - Illinois Law …illinoislawreview.org/wp-content/ilr-content/articles/2004/1/... · AMERICANS WITH DISABILITIES ACT: ALTERNATIVE REMEDIES

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DISENTANGLING THE ELEVENTH AMENDMENT AND THE AMERICANS WITH DISABILITIES ACT: ALTERNATIVE REMEDIES FOR STATE-INITIATED DISABILITY DISCRIMINATION UNDER TITLE I AND TITLE II

SETH A. HORVATH*

When it was first drafted and put into effect, the Americans with Disabilities Act (ADA) allowed litigants to seek monetary damages from state governments for disability-based discrimination under Ti-tle I and Title II of the statute. On Eleventh Amendment grounds, however, recent decisions have virtually eliminated the prospect of monetary damage awards against the states for such violations. In the wake of these decisions, the precise scope of remedies against the states for violations of Titles I and II of the ADA is unclear. This note examines possible alternative remedies for private plaintiffs al-leging disability discrimination by the states. Ultimately, the note ar-gues that two viable remedies exist: injunctive relief under Ex parte Young, and the so-called plan waiver exception to the Eleventh Amendment. The note asserts that the plan waiver remedy is particu-larly suitable when a Title I violation is alleged, while Ex parte Young injunctive relief should be favored as a remedy for Title II vio-lations.

“The law knows no finer hour than when it cuts through formal concepts and transitory emotions to protect unpopular citizens against discrimination and persecution.”1

* I have many people to thank for the support they offered me prior to and throughout the course of completing this note. I would first like to thank my editors, Justin Arbes and Melissa Econ-omy, for their helpful suggestions, their availability, and most of all, their patience. Second, I would like to thank my “little” sister, Tara Horvath, for waiting outside the law school to pick me up on all those occasions when fifteen minutes unexpectedly—and sometimes expectedly—turned into fifty. Third, I would like to thank Noreen Murphy for listening to me ramble on about lots of different things, two of which happened to be the Eleventh Amendment and the ADA, and for tolerating my distractedness dur-ing the completion of this note. Finally, from the bottom of my heart, I would like to thank my mother and father, Gale and Cary Horvath, whose love, generosity, and encouragement continue to mean more to me than one simple acknowledgement could ever describe. 1. Falbo v. United States, 320 U.S. 549, 561 (1944) (Murphy, J., dissenting).


232 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2004

I. INTRODUCTION

Consider the following scenario. A wheelchair-bound lawyer ap-plies for a position in a state’s appellate defense office. Her prior experi-ence with appellate work is quite extensive, and overall, her qualifica-tions for the job are excellent. The building housing the office in which she wishes to work is wheelchair accessible, and any additional modifica-tions to the working environment that she would require to accommo-date her disability would be minimal. Nevertheless, she is denied em-ployment. Certain that the decision not to hire her was based on her disability, she considers filing suit against the state under Title I of the Americans with Disabilities Act (ADA or Act), which prohibits disabil-ity-based employment discrimination.2 Her choice whether or not to file suit will depend on the nature of the remedies available to her in the event she successfully proves the state discriminated against her. Do ex-isting remedies under Title I for state-initiated disability discrimination provide enough of an incentive for her to file suit?

Now consider another similar set of circumstances. A lawyer with a history of mental illness who has successfully stabilized his condition through regular treatment moves to a new state and applies for admis-sion to the state bar, disclosing his history of mental illness in the pre-liminary stages of the application process.3 The state bar examiner de-nies him admission to the bar on the ground that his history of mental illness renders him unfit to practice law in the state. Frustrated by a de-cision he perceives as being grounded in irrational bias against the men-tally ill, the lawyer considers filing suit against the state under Title II of the ADA, which prohibits discrimination in the provision of services by public entities.4 His choice whether or not to file suit, like that of the wheelchair-bound lawyer who was denied employment by the state ap-pellate defender, will depend on the types of remedies available to him if he is able to prove that the state bar examiner discriminated against him on the basis of his mental illness. Do the remedies for disability-based discrimination in the provision of public services available under Title II provide him with an adequate incentive to file suit?

These examples illustrate a dilemma that only recently arose in the context of ADA litigation—ironically, a dilemma over the scope of remedies available under a statute originally intended to be broadly re-medial.5 Prior to 2001, ADA litigants alleging discrimination by state

2. 42 U.S.C. § 12112 (2000). 3. The facts of this hypothetical are loosely analogous to those of Medical Board v. Hason, 279 F.3d 1167 (9th Cir. 2002), cert. granted 71 U.S.L.W. 3247 (U.S. Nov. 18, 2002) (No. 02-479), cert. dis-missed, 123 S. Ct. 1779 (2003). 4. 42 U.S.C. § 12131. 5. See id. § 12101 (discussing purposes underlying the enactment of the ADA, the scope of the Act’s coverage, and the means of enforcing it).


No. 1] DISENTANGLING THE 11TH AMENDMENT AND ADA 233

governments had access to money damages under Title I and Title II.6 This, however, is no longer the case.7 Rulings on the applicability of the Eleventh Amendment to Title I and Title II of the ADA have signifi-cantly altered the remedial scope of the statute,8 adding to the already long list of misgivings over a piece of legislation once revered for its am-bitious, all-encompassing protection of the disabled.9 With monetary damages no longer available to private plaintiffs filing suit against state governments under Title I,10 injunctive relief and suits for damages initi-ated by the United States have become important remedial options for disabled individuals in the employment context.11 Moreover, with the Supreme Court likely to eliminate or strictly limit the availability of monetary damages under Title II,12 injunctive relief and suits for dam-ages by the United States are also likely to become important means of remedying disability discrimination in the provision of services by public entities.13

This note discusses the boundaries of the remedial framework that the Supreme Court has left the lower federal courts to develop and ad-minister under Title I and Title II of the ADA. Part II discusses the na-ture of states’ Eleventh Amendment immunity and describes the excep-tions to this immunity.14 It then describes the remedial provisions of Title I and Title II of the ADA.15 Part III analyzes injunctive relief and suits for damages by the United States as remedies for disability dis-crimination under Title I and Title II.16 As to Title I, the analysis focuses on the policy and doctrinal reasons that make injunctive relief an inade-quate remedy for state-initiated disability discrimination in the context of employment.17 It also suggests that Title I lends itself to an expansion of the so-called plan waiver exception to the Eleventh Amendment, which allows the United States to sue state governments for damages on behalf of private plaintiffs.18 As to Title II, the analysis first offers a basis for the conclusion that injunctive relief and suits for damages by the United States will soon become the only remedial options left to private plain-tiffs filing suit against state governments for discrimination in the provi-

6. See, e.g., Dare v. California, 191 F.3d 1167 (9th Cir. 1999); Crawford v. Ind. Dep’t of Corr., 115 F.3d 481 (7th Cir. 1997); Clark v. California, 123 F.3d 1267 (9th Cir. 1997). 7. See infra text accompanying notes 120–57. 8. See infra notes 120–57 and accompanying text. 9. See, e.g., Tom Harkin, Our Newest Civil Rights Law: The Americans with Disabilities Act, TRIAL, Dec. 1990, at 56 (describing the ADA as the “emancipation proclamation for people with dis-abilities”). 10. See infra text accompanying notes 120–34. 11. See infra text accompanying notes 120–34. 12. See infra text accompanying notes 135–57. 13. See infra text accompanying notes 135–57. 14. See infra text accompanying notes 22–83. 15. See infra text accompanying notes 84–115. 16. See infra text accompanying notes 116–302. 17. See infra text accompanying notes 162–230. 18. See infra text accompanying notes 231–74.



sion of public services, programs, and activities.19 It then discusses the merits of injunctive relief and suits by the United States in relation to the remedial provisions currently in place under Title II.20 Finally, Part IV suggests that in developing and administering the remedial framework for suits by private plaintiffs against state governments under Title I and Title II, lower federal courts can, on the basis of sound legal principles, give preference to suits by the United States under Title I and to suits for injunctive relief under Title II, while also remaining open to the possibil-ity that suits by the United States under Title II may be appropriate in certain circumstances.21 These distinctions, it is argued, are consistent with the differences between the coverages of Title I and Title II, and with the enforcement procedures that apply to each.

II. BACKGROUND

To fully understand the effect of the Supreme Court’s recent Elev-enth Amendment jurisprudence on the ADA, it is necessary to first de-scribe the nature and extent of the states’ Eleventh Amendment immu-nity and the scope of the ADA’s coverage. When Congress enacted the ADA, it intended ADA plaintiffs to be able to sue state governments for monetary damages in federal court for violations of the statute.22 Prac-tice has since deviated considerably from intent, and the source of this deviation has been the principle of sovereign immunity, as rooted in the Supreme Court’s Eleventh Amendment jurisprudence.23

A. The Eleventh Amendment: An Introduction

The Eleventh Amendment embodies the principle of state sover-eign immunity from suit.24 It provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or eq-

19. See infra text accompanying notes 135–57. 20. See infra text accompanying notes 275–302. 21. See infra text accompanying notes 303–17. 22. See 42 U.S.C. § 12202 (2000) (“A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdic-tion for a violation of this chapter. In any action against a State for a violation of the requirements of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.”). 23. See infra text accompanying notes 116–57. 24. The Supreme Court has indicated that the Eleventh Amendment does not confer immunity from suit on states so much as it confirms their possession of this immunity as sovereigns. See, e.g., Alden v. Maine, 527 U.S. 706, 728–29 (1999) (“The Eleventh Amendment confirmed rather than es-tablished sovereign immunity as a constitutional principle; it follows that the scope of the States’ im-munity from suit is demarcated not by the text of the Amendment alone but by the fundamental pos-tulates implicit in the constitutional design.”); Principality of Monaco v. Mississippi, 292 U.S. 313, 322 (1934) (“Behind the words of the constitutional provisions are postulates which limit and control.”). For a detailed discussion of the nature of sovereign immunity, see Carlos Manuel Vásquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1693–1708 (1997).



uity, commenced or prosecuted against one of the United States by Citi-zens of another State, or by Citizens or Subjects of any Foreign State.”25 By its own terms, the amendment bars citizens of one state from filing suit in federal court against the government of another state.26 It also ex-tends this prohibition to foreign nations.27 The language of the amend-ment itself does not bar suits against a state by its own citizens, but the Supreme Court has long interpreted it to prohibit such suits28 and has shown no indication it will retreat from this position.29 The restrictions of the Eleventh Amendment thus apply to all private plaintiffs.30

Like any rule, however, the Eleventh Amendment is subject to a number of exceptions.31 Some commentators have gone so far as to label it the “lawyer’s amendment,” because lawyers aware of the exceptions can avoid many of the jurisdictional complications that the amendment poses.32 While the exceptions themselves may be categorized in various ways,33 and while the scope of the exceptions is subject to debate,34 courts and commentators alike consistently recognize the same characteristics as placing a cause of action outside the scope of the Eleventh Amend-ment. In general, the amendment does not apply when: (1) a nonstate governmental entity is a defendant;35 (2) the federal government or a state government is a plaintiff;36 (3) the suit is for injunctive relief;37 (4) a state waives its immunity;38 or (5) the federal government abrogates a state’s immunity.39

25. U.S. CONST. amend. XI. 26. Id. 27. Id. For a discussion of the historical reasons explaining the scope of coverage of the Elev-enth Amendment, see 1 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL

LAW: SUBSTANCE AND PROCEDURE § 2.12, at 150–52 (3d ed. 1999). 28. See Hans v. Louisiana, 134 U.S. 1, 21 (1890). 29. See, e.g., Seminole Tribe v. Florida, 517 U.S. 44, 44 (1996) (reaffirming Hans); see also Ronald D. Rotunda, The Eleventh Amendment, Garrett, and Protection for Civil Rights, 53 ALA. L. REV. 1183, 1183 n.2 (2002). 30. See supra notes 24–29 and accompanying text. 31. See infra notes 35–39 and accompanying text. 32. See Rotunda, supra note 29, at 1185; see also Carlos Manuel Vásquez, Eleventh Amendment Schizophrenia, 75 NOTRE DAME L. REV. 859, 860 (2000) (referring to “alternative mechanisms for en-forcing federal law left open by the Eleventh Amendment” as significantly reducing “the problems the Amendment would otherwise pose for the efficacy of the federal legal obligations to the states”). 33. Compare 13 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3524, at 255 (Supp. 2003), and 1 ROTUNDA & NOWAK, supra note 27, at 154, with Evan H. Caminker, State Immunity Waivers for Suits by the United States, 98 MICH. L. REV. 92, 96–98 (1999). 34. See 1 ROTUNDA & NOWAK, supra note 27, at 152–74. 35. See infra notes 40–47 and accompanying text. 36. See infra notes 48–52 and accompanying text. 37. See infra notes 53–56 and accompanying text. 38. See infra notes 57–62 and accompanying text. 39. See infra notes 63–83 and accompanying text.



1. Nonstate Defendants

The Eleventh Amendment only bars lawsuits against state govern-ments,40 so a governmental entity that does not qualify as an “arm of the State”41 is not immune from a lawsuit filed by a private plaintiff in federal court. As part of state governments, state agencies enjoy Eleventh Amendment immunity.42 Likewise, state officers acting in their official capacities cannot be sued for damages in federal court.43 Politically inde-pendent units such as counties,44 cities,45 and school boards,46 however, may be sued in federal court without running afoul of the amendment. In addition, the amendment does not prohibit suits against state officials in their personal capacity.47

2. United States/State Plaintiff Exception

Even if a state is named as a defendant, or the named defendant qualifies as an agent or instrumentality of the state, the defendant may be sued in federal court by either the United States48 or another state.49 The Supreme Court has described the ability of the United States and individual states to file federal suits against state governments as stem-ming from the fact that states waived certain aspects of their intergov-ernmental immunity from suit when they joined the Union.50 This doc-trine is often referred to as plan waiver because it is premised on the view that states waived their immunity from suit against one another and their immunity from suit against the United States as part of the constitu-

40. U.S. CONST. amend. XI (preventing the judicial power of the United States from extending “against one of the United States”). 41. Alden v. Maine, 527 U.S. 706, 756 (1999). 42. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (noting that the Eleventh Amendment’s reference to actions “against one of the United States” includes actions against state agents and instrumentalities, not just actions in which a state is a named defendant). 43. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (explaining that an action against a state official in his or her “official capacity” is prohibited by the Eleventh Amendment because, in reality, it is simply an alternative means of pleading an action against the state). But see infra text accompanying notes 53–56 (discussing the Ex parte Young action). 44. See, e.g., Lincoln County v. Luning, 133 U.S. 529, 530 (1890) (holding the Eleventh Amend-ment inapplicable to a county). 45. See, e.g., Maybanks v. Ingraham, 378 F. Supp. 913, 918 (E.D. Pa. 1974) (holding the Eleventh Amendment inapplicable to a city). 46. See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (holding the Eleventh Amendment inapplicable to a school board). 47. See Hafer v. Melo, 502 U.S. 21, 27–31 (1991). Distinguishing between an “official capacity” suit and a “personal capacity” suit is often difficult. This determination is closely linked to the nature of the relief sought in a particular lawsuit. See 13 WRIGHT ET AL., supra note 33, § 3524, at 148–59 (2d ed. 1984). Focusing on the type of relief sought can help to clarify whether the state is a “real . . . party in interest” in the lawsuit, see Caminker, supra note 33, at 97 (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974)), in which case the Eleventh Amendment applies. 48. See, e.g., United States v. Mississippi, 380 U.S. 128, 136 (1965). 49. See, e.g., South Dakota v. North Carolina, 192 U.S. 286 (1904). 50. See Caminker, supra note 33, at 97 (citing Alden v. Maine, 527 U.S. 706, 713 (1999)).



tional “plan.”51 The doctrine of plan waiver incorporates the notion that sovereign immunity is a structural feature of the federal system itself, not simply a creation of the Eleventh Amendment.52

3. Injunctive Relief

The Eleventh Amendment also does not preclude suits that seek to enjoin a state officer from engaging in conduct that is illegal under fed-eral law or the Constitution.53 The Supreme Court first articulated this interpretation of the amendment in Ex parte Young, holding that the Eleventh Amendment did not bar an action in federal court that sought to enjoin Minnesota’s Attorney General from enforcing a statute that al-legedly violated the Fourteenth Amendment.54 The Court noted that when a state official’s conduct contravenes constitutional guarantees, the officer “is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual con-duct.”55 The Young doctrine, a creature of judicial interpretation, allows a litigant to prevent illegal state action in a lawsuit that is really one against a state as such, despite the Eleventh Amendment’s bar against suing state governments.56

4. Waiver

Eleventh Amendment immunity is also limited by the doctrine of waiver. States may waive their Eleventh Amendment immunity from suit as long as the waiver is explicit.57 The logical basis for allowing states to waive the Eleventh Amendment bar and forego their immunity is that the Eleventh Amendment protects the states as litigants.58 Because liti-gants may choose to give up certain protections if they do so explicitly, the states, as litigants, may give up the protection of the Eleventh Amendment.59 States may, for instance, choose to voluntarily surrender their immunity when their citizens indicate through the political process that they want access to a private right of action that would otherwise be precluded by the Eleventh Amendment.60 In the past, courts have found waiver of Eleventh Amendment immunity where states have enacted

51. See id. at 93. 52. See Alden v. Maine, 527 U.S. 706, 713 (1999). 53. See Ex parte Young, 209 U.S. 123, 150–51 (1908). 54. Id. at 149, 168. 55. Id. at 159–60. 56. For further discussion of the Young doctrine, see 17 CHARLES ALAN WRIGHT ET AL., FED-

ERAL PRACTICE AND PROCEDURE §§ 4231–4232 (2d ed. 1988). 57. See, e.g., Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680–83 (1999); Idaho v. Couer d’Alene Tribe, 521 U.S. 261, 267 (1997); Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990). 58. See Rotunda, supra note 29, at 1184. 59. See id. 60. See id.



statutes allowing them to be sued in federal court for civil rights viola-tions61 and statutes consenting to suit of specific state agencies.62

5. Abrogation

Finally, Congress may abrogate the states’ Eleventh Amendment immunity when it clearly indicates its intent to do so and acts pursuant to a valid grant of congressional authority.63 Determining whether Con-gress expressly intends to abrogate immunity involves examining the text of the statute Congress enacts to create a private right of action against the states.64 Once a court resolves this threshold issue, it can determine whether the abrogation of immunity constitutes a valid exercise of con-gressional power.65 Prior to the Supreme Court’s decision in Seminole Tribe v. Florida,66 the Court had indicated that Congress possessed the authority to abrogate sovereign immunity under its power to regulate in-terstate commerce,67 but Seminole Tribe established that Congress can-not abrogate the states’ immunity pursuant to the Commerce Clause.68 After Seminole Tribe, the sole basis for congressional abrogation of state immunity is Congress’s Fourteenth Amendment enforcement power.69

Section 1 of the Fourteenth Amendment protects individuals against state action that violates the Privileges or Immunities Clause, the Equal Protection Clause, or the Due Process Clause.70 Section 5 of the amendment gives Congress the power to enforce the provisions of Sec-

61. See, e.g., Tang v. R.I. Dep’t of Elderly Affairs, 904 F. Supp. 55, 63 (D.R.I. 1995) (holding that a Rhode Island statute providing that the state would be liable in tort actions in the same manner as private individuals and corporations waived the state’s Eleventh Amendment immunity in a racial dis-crimination action under § 1981). 62. See, e.g., Weidenfeller v. Kudulis, 392 F. Supp. 967, 969 (E.D. Wis. 1975) (holding that a Wis-consin statute providing that the Department of Health and Social Services could be sued waived the state’s Eleventh Amendment immunity with respect to the Department in an action under the Fair Labor Standard Act); see also Port Auth. Trans-Hudson Corp., 495 U.S. at 305, 306 (holding that the statutory consent to suit provision in the compact between New York and New Jersey creating a bi-state entity designed to operate certain transportation facilities waived the states’ Eleventh Amend-ment immunity vis-à-vis the entity). 63. Seminole Tribe v. Florida, 517 U.S. 44, 55 (1996). 64. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73–74 (2000) (concluding that Congress clearly indicated its intent to abrogate the states’ immunity from suit when it stated that an individual filing suit pursuant to the Age Discrimination in Employment Act could seek relief from various em-ployers, including state agencies); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999) (holding that Congress made its intent to abrogate the states’ sovereign im-munity clear when it stated in the text of the Trademark Remedy Clarification Act that “such state entities ‘shall not be immune, under the Eleventh Amendment of the Constitution of the United States. . . .’”). 65. See, e.g., Kimel, 528 U.S. at 73. 66. 517 U.S. 44. 67. See Pennsylvania v. Union Gas Co. 491 U.S. 1, 14–15 (1989) (plurality opinion). 68. Seminole Tribe, 517 U.S. at 66, 72–73 (overruling Union Gas and stating that “[t]he Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction”). 69. See id. at 59; see also infra notes 70–83 and accompanying text. 70. U.S. CONST. amend. XIV, § 1.



tion 1.71 Thus, pursuant to its Section 5 enforcement power, Congress can pass legislation that protects individuals from violations of the guar-antees in Section 1.72 In other words, it can create causes of action against state governments that subject them to suit by private plaintiffs.73

The scope of Congress’s enforcement power was uncertain for many years.74 In City of Boerne v. Flores, however, a clear majority of the Su-preme Court confirmed that the enforcement power is not unlimited.75 In Flores, the Court invalidated the Religious Freedom Restoration Act (RFRA).76 The RFRA limited state laws burdening the exercise of relig-ion, and the Court held that this limitation exceeded the scope of Con-gress’s Section 5 enforcement power.77 In so doing, it reasoned that Con-gress’s power under Section 5 is “‘remedial’”78 and does not include the substantive “power to determine what constitutes a constitutional viola-tion.”79 The Court established a balancing test for determining whether legislation falls within the Section 5 power, stating that “there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”80 According to the Court, the RFRA lacked this congruence and proportionality, because Congress had failed to produce evidence that the states had engaged in a pattern of enacting laws to restrict the exercise of religion.81 Without evidence of such an injury, the RFRA could not possibly be a congruent and propor-tional means of remedying it.82 The RFRA was thus inappropriate legis-lation under Section 5 and did not validly abrogate the states’ Eleventh Amendment immunity.83

71. Id. § 5 (“Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”). 72. Id. 73. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); see also John E. Nowak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413 (1975). 74. In the 1966 case of Katzenbach v. Morgan, 384 U.S. 641 (1966), the Supreme Court laid the groundwork for a broad interpretation of the scope of Congress’s enforcement power. See id. at 653 (confirming that Congress may enact legislation to remedy a violation of Equal Protection as long as the legislative remedy is reasonably related to the proper goal of enforcing Section 1 of the Fourteenth Amendment and also suggesting that Congress may actually define the scope of the Equal Protection guarantee itself). The broad interpretation of the enforcement power set forth in Morgan was first limited in Oregon v. Mitchell, 400 U.S. 112 (1970). In Mitchell, there was no opinion of the Court, but a majority of Justices agreed that Congress cannot define the substantive meaning of the Equal Protec-tion Clause. See id. at 127. For further discussion of the Court’s early decisions defining the scope of the enforcement power, see Rotunda, supra note 29, at 1204–13. 75. See City of Boerne v. Flores, 521 U.S. 507 (1997). 76. Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified as amended in sections of 42 U.S.C. § 2000bb). 77. See Flores, 521 U.S. at 519. 78. Id. at 519 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966)). 79. Id. 80. Id. at 520 (emphasis added). 81. See id. at 530–34. 82. See id. 83. See id.



B. The Americans with Disabilities Act: A Synopsis

The Eleventh Amendment and its exceptions have become a source of particular interest and concern in the context of the ADA. Congress enacted the ADA in 1990 to prevent disability discrimination in the United States.84 To be considered “disabled” for purposes of the Act, an individual must have a “physical or mental impairment that substantially limits one or more of the major life activities,”85 have a “record of such an impairment,”86 or be “regarded as having such an impairment.”87 This tripartite definition of “disability” applies to the antidiscrimination pro-visions in each of the ADA’s titles, which regulate employment (Title I),88 public services (Title II),89 public accommodations (Title III),90 and telecommunications (Title IV).91 Of these titles, only Title I and Title II have clashed with the restrictions of the Eleventh Amendment92 because only Title I and Title II provide litigants with a right of action against public entities.93

1. ADA Title I

Title I of the ADA prohibits employment discrimination on the ba-sis of disability in job application procedures, hiring, advancement, dis-

84. See 42 U.S.C. §§ 12101–12213 (2000). Congress set forth the following findings in the text of the ADA:

[I]ndividuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to exist-ing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.

Id. § 12101(a)(5). To remedy this “serious and pervasive social problem,” id. § 12101(a)(2), Congress enacted the ADA, intending to provide “a clear and comprehensive national mandate for the elimina-tion of discrimination against individuals with disabilities,” id. § 12101(b)(1), and “clear, strong, consis-tent, enforceable standards addressing discrimination against individuals with disabilities,” id. § 12101(b)(2). 85. Id. § 12102(2)(A). 86. Id. § 12102(2)(B). 87. Id. § 12102(2)(C). Individuals may be “regarded as” having a disability if they have an im-pairment that does not substantially limit a major life activity but is treated as if it does; they have an impairment that substantially limits a major life activity because of the attitudes of others; or they are treated as having an impairment where no impairment exists. See 29 C.F.R. § 1630.2(1) (2002). 88. See 42 U.S.C. §§ 12111–12117. 89. See id. §§ 12131–12165. 90. See id. §§ 12181–12189. 91. See 47 U.S.C. § 225 (2000). 92. See infra notes 116–57 and accompanying text. 93. See infra notes 95, 109 and accompanying text. Title III prohibits discrimination on the basis of disability by places of public accommodation operated by private entities. See 42 U.S.C. § 12182; see also id. §§ 12181(6)–12181(7). For a discussion of the legislative history of Title III and the compli-cations that have arisen in its enforcement, see Ruth Colker, ADA Title III: A Fragile Compromise, 21 BERKELEY J. EMP. & LAB. L. 377 (2000). Title IV amends the Communications Act of 1934, 47 U.S.C. §§ 151–757, to require that all “common carriers,” id. § 225(a)(1), provide “telecommunications relay services,” id. § 225(a)(3), that allow individuals with hearing or speech impairments to communicate by telephone with hearing individuals in a manner equivalent to that used by hearing individuals. See id. §§ 225(b)–225(c). ADA Title V contains miscellaneous provisions. 42 U.S.C. §§ 12201–12213.



charge, compensation, and training.94 Both private and public entities fall within the scope of Title I’s coverage as defendants because Title I applies to any employer with fifteen or more employees.95 For a disabled individual to be protected by Title I, the individual must be able to per-form the essential functions of the job at issue “with or without reason-able accommodation.”96 Under these terms, an individual has a cogniza-ble claim under Title I if the individual: (1) is disabled within the meaning of the Act; (2) is able to perform a job with or without some form of reasonable accommodation; (3) is working, or wishes to work, for an employer with fifteen or more employees; and (4) is discriminated against by that employer on the basis of a disability in any employment-related decision.97

Even if the above criteria are met, however, a Title I plaintiff may not file suit without first following the administrative procedures set forth in Title VII of the Civil Rights Act of 1964.98 Title I of the ADA adopts the remedial provisions of Title VII.99 That being the case, the Equal Employment Opportunity Commission (EEOC) is responsible for enforcing Title I.100 A job applicant or employee that believes he or she has been discriminated against on the basis of disability by a state em-ployer must file a charge with the EEOC, and the EEOC will investigate that charge.101 If the EEOC determines that there is no reasonable cause to believe the charge, then the charge will be dismissed.102 In this case, the EEOC will issue a right-to-sue letter to the complainant, giving the complainant permission to file a private suit against the employer.103 If, on the other hand, the EEOC finds reasonable cause to believe that an

94. 42 U.S.C. § 12112(a). 95. See id. § 12111(5)(A) (defining the term “employer” as “a person engaged in an industry af-fecting commerce who has 15 or more employees for each working day”) (emphasis added). 96. See id. § 12112(a) (“No covered entity shall discriminate against a qualified individual with a disability.”) (emphasis added); see also id. § 12111(8) (“The term ‘qualified individual with a disability’ means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”) (emphasis added). Examples of reasonable accommodations include making existing facilities accessible to indi-viduals with disabilities, job restructuring, part-time work, modified work schedules, reassignment to vacant positions, equipment modification, and the provision of qualified readers or interpreters. Id. § 12111(9)(A)–(B). The ADA does not obligate an employer to provide a reasonable accommodation if the accommodation would place an “undue hardship” on the operation of the employer’s business. See id. § 12112(b)(5)(A). 97. See supra notes 94–96 and accompanying text. 98. See 42 U.S.C. § 2000e-5. 99. Id. § 12117 (“The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchap-ter provides to the Commission, the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter . . . .”). 100. Id. § 2000e-5(a). The EEOC consists of five members appointed by the President. It has district offices throughout the country, which process charges of discrimination, and its Office of Gen-eral Council is responsible for litigating on its behalf. MACK A. PLAYER, FEDERAL LAW OF EMPLOY-

MENT DISCRIMINATION IN A NUTSHELL § II-5.01 (4th ed. 1999). 101. See 42 U.S.C. § 2000e-5(b); 29 C.F.R. §§ 1601.6–.7 (2002). 102. See 42 U.S.C. § 2000e-5(b); 29 C.F.R. §§ 1601.18–.19. 103. See 29 C.F.R. § 1601.28(a).



employer discriminated against the complainant, then it will negotiate with the employer and attempt to obtain relief for the complainant.104 If this conciliatory process fails, then the EEOC will refer the case to the Department of Justice (DOJ).105 Upon referral, the DOJ may either ini-tiate litigation on behalf of the complainant or issue a right-to-sue letter to the complainant.106 Regardless of whether the complainant or the DOJ initiates litigation, Title VII provides for both injunctive relief and monetary damages.107

2. ADA Title II

Title II of the ADA prohibits disability-based discrimination in the provision of government services, programs, and activities.108 Unlike Ti-tle I, it applies specifically to public entities, and its coverage is not sub-ject to a minimum-maximum size limitation.109 For a disabled individual to be protected by Title II, the individual must, with or without reason-able accommodation, meet the “essential eligibility requirements” for re-ceiving the government service or participating in the government pro-gram at issue.110 An individual thus has a valid claim under Title II if the individual: (1) is disabled within the meaning of the statute; (2) is eligi-ble to receive services or participate in programs or activities that a pub-lic entity provides; (3) and is denied the benefits of those services, pro-grams, or activities on the basis of the disability.111

104. See 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.24. 105. See 42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28(d). 106. See 42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28(d). 107. For a discussion of the full scope of injunctive and monetary remedies available under Title VII, see HAROLD S. LEWIS, JR. & ELIZABETH J. NORMAN, EMPLOYMENT DISCRIMINATION LAW AND

PRACTICE §§ 4.25–4.26 (2001). 108. 42 U.S.C. § 12132. Some of the services covered by Title II include public education, trans-portation, recreation, health care, social services, law enforcement, courts, prisons, voting, and town meetings. LEWIS & NORMAN, supra note 107, § 10.11, at 449. 109. Compare 42 U.S.C. § 12111(5)(A) (defining employer as having fifteen or more employees), with id. § 12131(1) (“The term ‘public entity’ means (A) any State or local government [and]; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local gov-ernment . . . .”). 110. See id. § 12132 (“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”) (emphasis added); see also id. § 12131(2) (“The term ‘qualified individual with a disability’ means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”) (emphasis added). 111. See supra notes 108–10 and accompanying text. Federal courts are split on the issue of whether Title II’s “services, programs, or activities” language covers employment discrimination by public entities. Compare, e.g., Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir. 1999) (holding that Title II’s “services” language refers only to the “outputs” of a public agency, so employ-ment, an “input,” cannot be considered a service within the meaning of Title II), with Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 821 (11th Cir. 1998) (“The statutory language used by Congress in the creation of Title II is brief. Extensive legislative commentary re-garding the applicability of Title II to employment discrimination, however, is so pervasive as to belie



Title II incorporates the enforcement procedures and remedies of Title VI of the Civil Rights Act of 1964.112 Thus, like Title I, it provides for injunctive relief, as well as the recovery of monetary damages.113 The main distinction between the enforcement of Title I and the enforcement of Title II is that Title II’s enforcement procedures do not require an ag-grieved party to file an administrative complaint prior to filing a private lawsuit.114 Thus, an individual may file suit against a public entity pursu-ant to Title II without first filing a complaint with an administrative agency and awaiting the conclusion of conciliatory proceedings.115

any contention that Title II does not apply to employment actions.”). The statutory interpretation issue of ADA Title II’s applicability to employment discrimination lawsuits has two important implica-tions. First, in jurisdictions where Title II applies to disability discrimination in government employ-ment, government employees may file suit directly without administrative approval, because the re-medial provisions of Title II do not require the timely filing of charges with the EEOC or any other agency before commencing suit. See 42 U.S.C. § 12133; see also infra notes 114–15 and accompanying text. Second, the application of Title II to employment discrimination expands the purview of the ADA’s prohibition against such discrimination to include government entities with fewer than fifteen employers because Title II’s coverage of public entities is not subject to any maximum-minimum size requirement. See 42 U.S.C. § 12131. Taken together, direct filing and expanded coverage make ADA employment discrimination lawsuits easier for government employees to file. 112. The exact path of this incorporation is a bit tortuous. Title II’s enforcement provision adopts the enforcement provisions of the Rehabilitation Act of 1973 (RHA), the precursor of the ADA. See 42 U.S.C. § 12133 (adopting the “remedies, procedures, and rights set forth in section 794a of Title 29” as those applicable to discrimination occurring in violation of ADA Title II); Rehabilitation Act of 1973, 29 U.S.C. § 794a(a)(1)–(2) (2000). While it is not immediately apparent whether Title II’s en-forcement provision refers to § 794a(a)(1), § 794a(a)(2), or both, legislative history clarifies that it re-fers to § 794a(a)(2). See S. REP. NO. 101-116, at 57–58 (1989). This interpretation is also consistent with logic and common sense. Because § 794a(a)(2) governs the enforcement of § 794, which prohibits recipients of federal funds from discriminating against an “otherwise qualified individual with a dis-ability” in “any program or activity receiving federal financial assistance,” see 29 U.S.C. § 794(a), and because Title II, like § 794, addresses discrimination in the context of government services, programs, and activities, it is logical that § 794a(a)(2) would govern violations of Title II. After all, § 794a(a)(1) governs violations of § 791, and § 791 applies only to federal employers that engage in disability dis-crimination against federal employees. See 29 U.S.C. § 791. The result of Title II’s adoption of § 794a(a)(2) is the consequent incorporation of the enforcement procedures and remedies of Title VI of the Civil Rights Act. See 29 U.S.C. § 794a(a)(2) (adopting the “remedies, procedures, and rights” of Title VI). Therefore, a party that files a Title II suit against a public entity alleging discrimination in the provision of a government service is bound by the enforcement procedures of Title VI and has ac-cess to the remedies provided by Title VI. See 42 U.S.C. § 2000d-7. 113. See 42 U.S.C. § 2000d-7 (“In a suit against a State . . . remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.”). 114. See id.; 28 C.F.R. § 35.172(b) (2002) (“At any time, the complainant may file a private suit pursuant to . . . the Act, whether or not the designated agency finds a violation.”); id. § 35, app. A, subpt. F, § 35.172 (“The Act requires the Department of Justice to establish administrative procedures for resolution of complaints, but does not require complainants to exhaust these administrative reme-dies. The Committee Reports make clear that Congress intended to provide a private right of action with the full panoply of remedies for individual victims of discrimination. Because the Act does not require exhaustion of administrative remedies, the complainant may elect to proceed with a private suit at any time.”); see also DEP’T OF JUSTICE, ADA TITLE II DOJ TECHNICAL ASSISTANCE MANUAL

§ II-9.1000 (1996), reprinted in RUTH COLKER & BONNIE POITRAS TUCKER, THE LAW OF DISABILITY

DISCRIMINATION HANDBOOK: STATUTES AND REGULATORY GUIDANCE (3d ed. 2000) [hereinafter TECHNICAL ASSISTANCE MANUAL]. 115. See TECHNICAL ASSISTANCE MANUAL, supra note 114, § II-9.1000.



III. ANALYSIS

A. The Intersection of the Eleventh Amendment and the ADA

Having separately discussed the Eleventh Amendment and the ADA, the nature and consequences of their relationship with one an-other can be analyzed. The first portion of this analysis discusses Su-preme Court case law dealing with the issue of private lawsuits against state governments under Title I and Title II of the ADA.116 It focuses on the Court’s seminal Title I decision, Board of Trustees v. Garrett,117 as well as Medical Board v. Hason,118 a Title II case that was pending before the Court in 2003, until the petitioner, for reasons indicative of the posi-tion the Court is likely to take on the constitutionality of Title II, notified the Court it did not wish to proceed with the case.119

1. ADA Title I and Board of Trustees v. Garrett

In Board of Trustees v. Garrett, respondent Patricia Garrett, a regis-tered nurse employed as a nursing director in a state-run hospital in Ala-bama, was forced to accept a lower paying position after returning from a leave of absence she took to undergo cancer treatment.120 Respondent Milton Ash, a state-employed security officer, was denied the accommo-dations he requested to minimize the impact his work environment and schedule had on his chronic asthma and sleep apnea.121 Garrett and Ash filed separate lawsuits in the United States District Court for the North-ern District of Alabama, seeking monetary damages under Title I of the ADA.122 The court disposed of both cases in a single opinion, denying Garrett and Ash damages on the ground that the ADA exceeded Con-gress’s authority to abrogate the states’ Eleventh Amendment immu-nity.123 The Court of Appeals for the Eleventh Circuit reversed,124 relying on its decision in Kimel v. State Board of Regents,125 which held that the ADA validly abrogated the states’ Eleventh Amendment immunity.126

After granting certiorari, the Supreme Court reversed the Eleventh Circuit, holding that the Eleventh Amendment bars state employees from suing states in federal court to recover monetary damages for the states’ failures to comply with Title I’s prohibition against disability-

116. See infra text accompanying notes 120–57. 117. 531 U.S. 356 (2001). 118. 279 F.3d 1167 (9th Cir. 2002), cert. granted, 71 U.S.L.W. 3247 (U.S. Nov. 18, 2002) (No. 02-479), cert. dismissed, 123 S. Ct. 1779 (2003). 119. See infra notes 135–50 and accompanying text. 120. See Garrett, 531 U.S. at 362. 121. Id. 122. Id. at 360, 362. 123. See id. at 362–63. 124. Id. at 363. 125. 139 F.3d 1426 (11th Cir. 1998). 126. Id. at 1443; see Garrett, 531 U.S. at 363.



based employment discrimination.127 In so holding, the Court deter-mined that Title I did not fall within the scope of Congress’s section 5 en-forcement power.128 According to the Court, in enacting Title I of the ADA, Congress did not successfully identify a history and pattern of un-constitutional employment discrimination by the states against the dis-abled.129 The Court further stated that even if Title I’s legislative history could be interpreted as demonstrating a pattern of disability discrimina-tion in employment by the states, Title I would still not validly abrogate the states’ Eleventh Amendment immunity, because it was not a “con-gruent and proportional” response to disability discrimination.130 In this regard, the Court explained that Title I’s reasonable accommodation provision requires state employers to do more than is constitutionally necessary to accommodate disabled employees.131 The Constitution re-quires only that the states refrain from acting irrationally toward disabled individuals.132 Because it would be rational, for financial reasons, for a state employer to make hiring decisions based on a potential employee’s ability to use existing facilities,133 but impermissible under the ADA, the ADA’s reasonable accommodation requirement unconstitutionally pro-hibited state employers from considering individuals’ disabilities in their employment decisions.134

2. Medical Board v. Hason and the Title II Circuit Split

Though the Court in Garrett disposed of the issue of the states’ im-munity from suit under Title I of the ADA, it did not address the issue of whether private parties can recover monetary damages from states under Title II for disability discrimination in the provision of government ser-vices, programs, and activities.135 The Court was poised to resolve this

127. See Garrett, 531 U.S. at 360. 128. See id. at 360, 374. 129. See id. at 374. 130. See id. at 372–74. 131. See id. at 372. 132. See id. at 366–67 (discussing Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985), in which the Court held that disability did not constitute a quasi-suspect classification for purposes of its equal protection jurisprudence, and concluding that Cleburne established that states merely must act rationally toward disabled individuals to avoid violating the Equal Protection Clause). 133. See id. at 372. 134. See id. 135. The Garrett Court reasoned that while the petitioners’ “Questions Presented” could be read to apply to both Title I and Title II of the ADA, “no party has briefed the question whether Title II of the ADA, dealing with the ‘services, programs, or activities of a public entity,’. . . is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject.” Id. at 360 n.1 (citation omitted). Accordingly, the Court indicated that it was “not disposed to decide the constitutional issue whether Title II, which has somewhat different remedial provisions from Title I, is appropriate legislation under § 5 of the Fourteenth Amendment when the parties have not favored [the Court] with briefing on the statutory question.” Id. The Court then dismissed the portion of the writ of certiorari on the question of whether state employers may be sued for monetary damages pur-suant to ADA Title II. Id.



issue in Medical Board v. Hason.136 In Hason, the respondent, a physi-cian, was denied a license to practice medicine in California on the basis of his history of mental illness.137 In response, he sued the Medical Board of the State of California under Title II of the ADA in the United States District Court for the Central District of California for both damages and injunctive relief.138 The district court dismissed the plaintiff’s complaint against the Medical Board on the ground that the Eleventh Amendment barred his claims.139 The Court of Appeals for the Ninth Circuit reversed and remanded, holding that the Eleventh Amendment did not bar the plaintiff’s Title II claims.140 It rested its holding on two of its previous de-cisions upholding Title II as a valid exercise of Congress’s enforcement power.141 The court reasoned that the Supreme Court’s decision in Garrett was restricted to Title I and, therefore, did not compel it to re-consider its decisions on Title II.142

The remainder of Hason’s procedural history serves as a telling sign of the decision the Court is likely to make in determining the applicabil-ity of Title II to state governments. On March 3, 2003, roughly three weeks before oral arguments in Hason were scheduled to proceed before the Supreme Court, Bill Lockeyer, the California Attorney General, sent the Court a letter indicating that the State of California no longer wished to argue the case before the Court.143 Shortly thereafter, on April 7, the Court entered an order dismissing the case.144 Lockeyer had first made his position on discontinuing the case officially known in a February 21, 2003, letter to the Medical Board of California.145 The letter noted that “it would be truly unfortunate to have the entirety of the ADA’s reme-dial scheme against state discrimination decided in the context of this case’s limited focus. It is understandable that California’s community of persons with disabilities is extremely anxious over such a prospect.”146 In addition, it concluded that discontinuing the case would serve “the greater public interest.”147 Settlement talks in the case had failed,148 but

136. 279 F.3d 1167 (9th Cir. 2002), cert. granted, 71 U.S.L.W. 3247 (U.S. Nov. 18, 2002) (No. 02-479), cert. dismissed, 123 S. Ct. 1779 (2003). 137. Id. at 1169–70. 138. Id. at 1170. 139. Id. 140. Id. at 1174. 141. See Dare v. California, 191 F.3d 1167, 1175 (9th Cir. 1999); Clark v. California, 123 F.3d 1267, 1270–71 (9th Cir. 1997). 142. See Hason, 279 F.3d at 1171. 143. See Charles Lane, On Second Thought . . ., WASH. POST, Apr. 11, 2003, at A25. 144. Id.; see also 123 S. Ct. 1779 (2003). The April 7 order is thought to mark the first instance in the Court’s history that the Justices have dismissed a case solely upon request of the party that origi-nally petitioned for certiorari. Lane, supra note 143, at A25. 145. Lane, supra note 143, at A25. 146. Id. (quoting Letter from Bill Lockeyer, Attorney General, California, to Medical Board of California (Feb. 21, 2003)). 147. Id. (quoting Letter from Bill Lockeyer, Attorney General, California, to Medical Board of California (Feb. 21, 2003)). 148. Id.



by at least one account, the case had become a “political liability,”149 and Lockeyer was eager to end the litigation. Reportedly, California disabil-ity activists, concerned that the Court’s decision in the Hason case would limit the coverage of Title II, communicated to the Attorney General that they would not support his potential bid for governor in 2006 if Cali-fornia did not withdraw from the case.150 Regardless of whether Lock-eyer’s decision about the case was a direct response to the political pres-sure exerted by California’s disability lobby or a public policy choice that it would be in the best interest of the State of California to ensure the continued availability of money damages under Title II by not pursuing the litigation, the obvious implication of the decision was that the parties interested in the case’s outcome were fairly certain the Court would re-solve the matter in favor of California. Their apparent certainty comes as no surprise in light of prevailing Title II case law.

The Ninth Circuit’s decision in Hason further exacerbated a circuit split over the issue of whether the states are immune from suit for dam-ages by private individuals under Title II. The Fourth, Fifth, Eighth, and Tenth Circuits agree that the states are entirely immune from suit under Title II;151 the First, Second, and Sixth Circuits have taken the position that the states are partially immune from suit;152 and the Seventh Circuit is indeterminate but has indicated it might hold that the states are en-tirely immune from suit.153 Only the Ninth Circuit maintains that the

149. Id. 150. Id. 151. See Wessel v. Glendening, 306 F.3d 203, 210–15 (4th Cir. 2002) (holding that Congress did not validly abrogate the states’ Eleventh Amendment immunity when it enacted Title II of the ADA); Klingler v. Dir., Dep’t of Revenue, 281 F.3d 776, 777 (8th Cir. 2002) (affirming Alsbrook v. City of Maumelle, 184 F.3d 999, 1006–10 (8th Cir. 1999), a pre-Garrett decision holding that Title II does not validly abrogate the states’ sovereign immunity); Reickenbacker v. Foster, 274 F.3d 974, 981–83 (5th Cir. 2001) (overruling Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998), after Garrett and holding that “[s]ince the accommodation obligation imposed by Title II . . . far exceeds that imposed by the Constitution, we cannot conclude that [it is] proportional and congruent to the legislative findings of unconstitutional discrimination against the disabled by the States”); Thompson v. Colorado, 278 F.3d 1020, 1034 (10th Cir. 2001) (holding that Title II does not validly abrogate the states’ sovereign immu-nity). 152. See Kiman v. N.H. Dep’t of Corr., 301 F.3d 13, 24 (1st Cir. 2002) (holding that “Congress acted within its powers in subjecting the states to private suit under Title II of the ADA, at least as that Title is applied to cases in which a court identifies a constitutional violation by the state” and de-clining to rule on whether Congress acted within its enforcement power by allowing private suits under “the full scope of Title II”); Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, 811 (6th Cir. 2002) (holding that Title II does not constitute a legitimate exercise of the enforcement power as applied to equal protection violations of Section 1 of the Fourteenth Amendment, but does constitute a legitimate exercise as applied to certain due process-type violations); Garcia v. S.U.N.Y. Health Scis. Ctr., 280 F.3d 98, 111 (2d Cir. 2001) (holding that Title II actions may only be brought against the states if the plaintiff can establish that the “violation was motivated by discriminatory ani-mus or ill will based on the plaintiff’s disability”). 153. See Erickson v. Bd. of Governors, 207 F.3d 945, 948 (7th Cir. 2000) (questioning the vitality of Crawford v. Ind. Dep’t of Corr., 115 F.3d 481, 487 (7th Cir. 1997), which upheld Title II as a valid abrogation of state sovereign immunity).



states are not immune from suit.154 Thus, of the circuit courts that have ruled on this issue, a majority agrees that the states are at least partially immune from suit under Title II,155 and a clear plurality maintains that the states’ immunity under Title II is absolute.156 In light of the current status of circuit court case law on Title II, the Supreme Court’s decision in favor of state immunity under Title I, and the circumstances surround-ing the Hason case, the Supreme Court is likely to determine that the states are either partially or entirely immune from suit for damages by private individuals under Title II, placing Title II plaintiffs filing suit against the states on the same footing as Title I plaintiffs insofar as the availability of monetary damages is concerned.157

B. Post-Garrett Remedies for State Disability Discrimination

Even though private plaintiffs are no longer able to file suit for monetary damages in federal court against state governments under Title I158 and the availability of this remedial option is quickly dwindling under Title II as well,159 ADA plaintiffs still have access to various remedies for state-initiated disability discrimination. These remedies stem from the exceptions to the states’ Eleventh Amendment immunity described above.160 This portion of the analysis discusses those remedies as they apply to Title I and Title II of the ADA.161

1. Post-Garrett Remedies Under Title I

In a brief footnote at the end of the Garrett opinion, the Supreme Court set forth the parameters of an alternative remedial framework for addressing disability discrimination by the states.162 Footnote nine indi-cates that, despite the Court’s holding in Garrett, Title I is still applicable to the states and can be enforced: (1) by private individuals in Ex parte

154. See Med. Bd. v. Hason, 279 F.3d 1167 (9th Cir. 2002), cert. granted, 71 U.S.L.W. 3247 (U.S. Nov. 18, 2002) (No. 02-479), cert. dismissed, 123 S. Ct. 1779 (2003) (affirming the pre-Garrett decision, Dare v. California, 191 F.3d 1167, 1174–75 (9th Cir. 1999), which held that “the ADA was a congruent and proportional exercise of Congress’s enforcement powers under § 5 of the Fourteenth Amendment that abrogated Eleventh Amendment immunity”). 155. See Kiman, 301 F.3d at 24; Wessel, 306 F.3d at 210–15; Popovich, 276 F.3d at 811; Klingler, 281 F.3d at 777; Garcia, 280 F.3d at 111; Reickenbacker, 274 F.3d at 981–83; Thompson, 278 F.3d at 1034; see also Erickson, 207 F.3d at 948 (questioning the vitality of Crawford, 115 F.3d at 487). 156. See Wessel, 306 F.3d at 210–15; Klingler, 281 F.3d at 777; Reickenbacker, 274 F.3d at 981–83; Thompson, 278 F.3d at 1034. 157. See supra notes 120–56 and accompanying text. During the publication of this note, the Su-preme Court granted certiorari in Tennessee v. Lane, 315 F.3d 680 (6th Cir. 2003), cert. granted, 71 U.S.L.W. 3789 (U.S. June 23, 2003) (no. 02-1667), to resolve the issue of whether ADA Title II fails to validly abrogate the states’ Eleventh Amendment immunity from private claims for monetary dam-ages. The Court should issue its opinion in the case sometime in 2004. 158. See supra text accompanying notes 120–34. 159. See supra text accompanying notes 135–56. 160. See supra text accompanying notes 40–83. 161. See infra Part III.B.1–2. 162. See Bd. of Trs. v. Garrett, 531 U.S. 356, 374 n.9 (2001).



Young actions for injunctive relief, and (2) by the United States in ac-tions for monetary damages.163 Footnote nine also suggests that state antidisability discrimination laws provide individuals with an alternative means of redressing disability discrimination,164 but because the adequacy of this particular remedial alternative has been addressed at length else-where,165 this analysis focuses on the federal recourse against disability discrimination outlined in Garrett.

a. Ex parte Young Injunctive Relief in General

Recall that an Ex parte Young action allows a plaintiff to sue a state official in his or her official capacity to prevent a violation of federal law.166 The Young doctrine is premised on the idea that a state cannot authorize an official to engage in a violation of federal law.167 Actions committed in violation of federal law are considered ultra vires and therefore do not constitute actions of the state.168 Because these actions are not the actions of the sovereign, they cannot be protected by sover-eign immunity.169 The result of this reasoning is that Ex parte Young suits are regarded as being against individual defendants rather than against states.170 As one commentator has noted, this legal fiction possesses “its own illogic.”171 The Fourteenth Amendment only applies to the states;172 thus, to obtain relief under the amendment a plaintiff must be able to demonstrate that the plaintiff’s constitutional rights were violated as a result of state action.173 When the Court handed down its decision in Ex parte Young, it could have held that the Fourteenth Amendment altered the states’ Eleventh Amendment immunity, given that the Fourteenth Amendment was ratified after the Eleventh Amendment.174 But the Court refused to do so.175 It instead considered the enforcement of the

163. Id. (“Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young.”). 164. See id. (“[S]tate laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress.”). 165. See Ruth Colker & Adam Milani, The Post-Garrett World: Insufficient State Protection Against Disability Discrimination, 53 ALA. L. REV. 1075, 1113 (2002) (concluding that a majority of state antidisability discrimination statutes do not provide coverage as extensive as the ADA). 166. See supra text accompanying notes 53–56. 167. See Ex parte Young, 209 U.S. 123, 159 (1908). 168. Id. 169. Id. 170. See 17 WRIGHT ET AL., supra note 56, § 4231, at 563–64. 171. Id. at 564. 172. U.S. CONST. amend. XIV. 173. See 17 WRIGHT ET AL., supra note 56, § 4231, at 564 (citing Civil Rights Cases, 109 U.S. 3 (1833)). 174. See id. 175. See id.; see also Ex parte Young, 209 U.S. 123, 150 (1908) (“We think that whatever the rights of complainants may be, they are largely founded upon [the Fourteenth] Amendment, but a decision of this case does not require an examination or decision of the question whether its adoption in any way altered or limited the effect of the earlier Amendment. We may assume that each exists in full



statute at issue in Young to be state action under the Fourteenth Amendment, but merely the individual wrong of a flesh-and-blood bu-reaucrat under the Eleventh Amendment.176

The “illogic” of the Young doctrine serves an important function, because it prevents the states from ignoring federal laws that they might otherwise be able to disregard without rebuke.177 At the same time, the “illogic” of Young is the root of its limitations.178 Ex Parte Young em-powers federal courts to order state officials engaging in unconstitutional or illegal conduct to refrain from doing so, even when complying with the law requires expenditure of state funds.179 These expenditures, however, may only go toward prospective injunctive relief.180 Retroactive relief of any sort, even if characterized as equitable or injunctive, is barred by the Eleventh Amendment.181 For example, in the same suit in which the Court upheld a lower federal court’s order to a state officer forcing him, prospectively, to disburse state welfare payments in conformity with fed-eral laws, it struck the order requiring him to pay past due welfare checks on the ground that this remedy constituted impermissible retroactive re-lief.182 The distinction between retroactive and prospective relief is ad-mittedly a difficult one to make,183 but the Court continues to distinguish between claims for retroactive monetary relief and claims that will re-quire the future expenditure of money.184 Typically, the date used to de-termine whether a cost to the state is prospective or retroactive is the date on which a federal district court has decided the state’s conduct is wrongful.185

force, and that we must give to the 11th Amendment all the effect it naturally would have, without cutting it down or rendering its meaning any more narrow than the language, fairly interpreted, would warrant.”). 176. See 17 WRIGHT ET AL., supra note 56, at 564–65. 177. See id. at 567–68. 178. See id. at 567. 179. See, e.g., Edelman v. Jordan, 415 U.S. 651 (1974). 180. See 1 ROTUNDA & NOWAK, supra note 27, at 160. 181. Id. at 159. 182. See Edelman, 415 U.S. 651, rehearing denied, 416 U.S. 1000 (1974), on remand, 405 F. Supp. 802 (N.D. Ill. 1975), rev’d 551 F.2d 152 (7th Cir.), on rehearing, 563 F.2d 873 (7th Cir. 1977), aff’d sub nom. Quern v. Jordan, 440 U.S. 332 (1979). 183. See, e.g., id. at 667 (noting that “[a]s in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night”). 184. See, e.g., County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 250–53 (1985) (holding that a claim of counties for indemnification from the state was a claim for retroactive monetary relief barred by the Eleventh Amendment); see also Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1219–26 (2000) (holding that the Ex parte Young doctrine does not apply if the prospective relief the plaintiff seeks is measured in terms of monetary loss from past breach of legal duty, because such measurement renders the prospective relief the functional equiva-lent of money damages). 185. See Fitzpatrick v. Bitzer, 427 U.S. 445, 451 (1976) (“In Edelman this Court held that mone-tary relief awarded by the District Court to welfare plaintiffs, by reason of wrongful denial of benefits which had occurred previous to the entry of the District Court’s determination of their wrongfulness, violated the Eleventh Amendment.”); see also Buckhanon v. Percy, 708 F.2d 1209, 1215 (7th Cir. 1983)



b. Shortcomings of Injunctive Relief Under Title I

An Ex parte Young action suffers a number of shortcomings as a remedy for state-initiated disability discrimination in the employment context. As a means of injunctive relief, it is subject to the same limita-tions as any other injunction used to resolve employment disputes.186 In addition, the limitations inherent in the type of relief an Ex parte Young action offers are exacerbated by weaknesses in the doctrinal foundation of Ex parte Young itself.187 These weaknesses stem from the Supreme Court’s most recent discussions of the history and current applicability of the Ex parte Young action.188

i. Inherent Limitations of Injunctive Relief in the Context of Employment Disputes

Contract law has long accounted for the complications that accom-pany courts’ use of injunctive relief in the employment context.189 Spe-cific performance of a contract, an injunctive remedy, requires a party that breaches a contract to perform its contractual obligations in the manner originally agreed upon.190 Courts traditionally have not com-pelled specific performance of contracts for personal services because performance of these agreements typically involves close association be-tween the parties.191 Enforcing this association after a dispute has com-promised the parties’ confidence in one another is detrimental to the in-terests of both parties.192 Thus, regardless of whether an employee or an employer breaches the employment contract, the remedy of specific per-formance is heavily disfavored.193 It is much more common for courts to simply award damages to the aggrieved party in an action for breach of contract.194

The same logic applies outside the context of purely contractual employment disputes. In the civil rights arena, Title VII prohibits em-ployment discrimination on the basis of race, color, religion, and national origin.195 It covers discrimination that occurs in any aspect of the em-ployment relationship, including application, hiring, advancement, dis-

(“[T]he date for determining whether a monetary award is retroactive or prospective is that upon which the district court determined that the state’s conduct was wrongful.”). 186. See infra notes 189–219 and accompanying text. 187. See infra notes 220–30 and accompanying text. 188. See infra notes 220–30 and accompanying text. 189. See 12 ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS § 1204, at 441–45 (interim ed. 2002). 190. 11 id. § 990, at 2–4. 191. 12 id. § 1204, at 443. 192. Id. 193. Id. at 444. 194. Id. at 188. 195. 42 U.S.C. § 2000e-2 (2000).



charge, compensation, and training.196 Title VII’s extensive enforcement provisions allow for injunctive relief, which may take various forms de-pending on the exact context in which the discrimination the injunctive relief is intended to remedy occurs.197 In the context of wrongful dis-charge, for instance, this injunctive relief takes the form of reinstate-ment.198 In the context of advancement, injunctive relief requires the in-dividual who has suffered discrimination to be promoted as soon as a position opens that is similar to the one that individual was denied.199 Courts, however, have traditionally not granted reinstatement or promo-tion to Title VII plaintiffs wrongfully discharged or denied advancement on the basis of a suspect trait where money damages were found to be a sufficient remedy.200 This position is consistent with the position courts have taken in disputes over the breach of contracts for personal ser-vices,201 which should come as little surprise given that the concerns sur-rounding injunctive relief in the context of Title VII employment dis-crimination are arguably even more acute than those that arise in the midst of contractual employment disputes.202

As mentioned, Title I of the ADA incorporates the remedial provi-sions of Title VII of the Civil Rights Act of 1964.203 Thus, under Title I, a court may grant a plaintiff an injunction as a remedy for disability dis-crimination.204 Before Garrett, however, Title I plaintiffs who sued state employers could count on receiving monetary damages as a remedy for disability discrimination.205 While injunctive relief was available to plain-tiffs, it was not their sole remedial option.206 Its limitations were either offset or avoided altogether by the prospect of receiving a monetary judgment.207

In contrast, an Ex parte Young action allows a Title I plaintiff that sues a state to obtain only injunctive relief, so the remedy afforded by a Young suit is subject to the same limitations as the specific performance

196. Id. 197. See, e.g., LEWIS & NORMAN, supra note 107, §§ 4.25–.26. 198. Id. 199. Id. 200. See 2 DAN B. DOBBS, LAW OF REMEDIES § 4.25, at 198–200 (1996); see also Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 789 F.2d 253, 261 (3d Cir. 1986) (upholding district court’s decision to grant employee front pay instead of reinstatement on ground that employee-employer relationship had been so damaged by litigation that continued working relationship would be infeasible); EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. 919, 926 (S.D.N.Y. 1976) (denying a hiring order where discord would prevent an employee from performing efficiently). 201. Compare 12 CORBIN, supra note 189, at 443, with 2 DOBBS, supra note 200, at 199. 202. If courts’ rationale for disfavoring injunctive relief in disputes over employment contracts is that injunctive relief promotes discomfort in the work environment, see 12 CORBIN, supra note 189, at 443, discomfort in a work environment where discrimination has occurred would arguably be greater than discomfort in a work environment where a simple contractual dispute had arisen. 203. See supra note 99 and accompanying text. 204. See 42 U.S.C. § 2000e-5(g)(1) (2000). 205. See Bd. of Trs. v. Garrett, 531 U.S. 356, 374 (2001). 206. See id. at 365, 373–74; see also 42 U.S.C. § 2000e-5. 207. See supra note 206.



of a personal service contract or the injunction of Title VII employment discrimination.208 In fact, the remedial scope of an Ex parte Young in-junction is even narrower than that of other types of injunctive relief. Ti-tle VII, for instance, allows for back pay to be awarded as an injunctive remedy,209 but the prospectivity limitation on Ex parte Young relief pre-cludes ADA Title I plaintiffs that file suit against the states from receiv-ing back pay, a retroactive remedy.210

Moreover, the inherent limitations of Ex parte Young injunctive re-lief in the employment context place ADA Title I plaintiffs who invoke the Young doctrine at risk of receiving no relief at all for the disability discrimination they experience. This concern is more than a theoretical one. While most courts faced with the issue have granted Ex parte Young injunctive relief in Title I suits against state employers,211 not all have been so receptive to the Young argument. Take, for example, Riz-zato-Reines v. Kane County Sheriff,212 a case from the United States Dis-trict Court for the Northern District of Illinois. In Rizzato-Reines, a county sheriff’s employee claiming she suffered from carpal tunnel syn-drome brought an action against her employer alleging discrimination in violation of Title I of the ADA.213 After noting that the Eleventh Amendment barred the plaintiff’s recovery of money damages and at-torney fees on her discrimination claim pursuant to Garrett,214 the court discussed the plaintiff’s allegation that the county sheriff did not provide her with reasonable accommodation for her carpal tunnel syndrome dis-ability.215 It interpreted this aspect of the plaintiff’s complaint as a re-quest for injunctive relief of the sort discussed by the Supreme Court in footnote nine of Garrett.216 According to the court, granting injunctive relief would have required it to issue a mandatory injunction requiring the county sheriff to rehire the plaintiff and transfer her to another job.217 This course of action would have been undesirable, however, because “[r]einstatement in employment discrimination cases is an equitable remedy that is not ordered when it is contraindicated by the deteriora-

208. See supra text accompanying notes 189–202. 209. See LEWIS & NORMAN, supra note 107, § 4.25. 210. See supra text accompanying notes 180–85; see also Mass. State Grange v. Benton, 272 U.S. 525, 527 (1926) (stating that “no injunction ought to issue against officers of a State clothed with au-thority to enforce the law in question, unless in a case reasonably free from doubt and when necessary to prevent great and irreparable injury”). 211. See, e.g., Frazier v. Simmons, 254 F.3d 1247, 1255 (10th Cir. 2002) (holding that a state em-ployee’s claims under ADA Title I could be construed as requesting injunctive relief and thus were not barred by the Eleventh Amendment); Gibson v. Ark. Dep’t of Corr., 265 F.3d 718 (8th Cir. 2001) (holding that state employees can sue state officials for prospective injunctive relief under ADA Title I by using the Ex parte Young doctrine). 212. 149 F. Supp. 2d 482 (N.D. Ill. 2001). 213. Id. 214. Id. at 483. 215. Id. at 484. 216. Id. 217. Id.



tion in relationship that is the typical adjunct of an employee’s firing (whether justified or not).”218 Based on this rationale, the court con-cluded that Garrett foreclosed both damage remedies and any other po-tential ADA-prescribed remedies against the plaintiff’s employer.219

ii. The Doctrinal Instability of Ex parte Young

In addition to the inherent limitations of Ex parte Young injunctive relief in the employment context, the overall soundness of Ex parte Young’s legal foundation is questionable. In recent years, the Supreme Court has indicated a willingness to restrict the Young doctrine. In Seminole Tribe v. Florida, the Court acknowledged that the application of Ex parte Young can be limited “where Congress has [already] pre-scribed a detailed remedial scheme for the enforcement against a state of a statutorily created right.”220 Thus, because the legislation at issue in that case, the Indian Gaming Regulatory Act (IGRA),221 contained a de-tailed remedial scheme and did not indicate any congressional intent to authorize suits brought under Ex parte Young, the Court denied the ap-plicability of the Young exception to Eleventh Amendment immunity.222

In addition, the Court has held that the Young doctrine cannot be used to allow a federal court to hear the functional equivalent of a quiet-title action against a state because of the “special sovereignty interests” at stake in such an action.223 In that case, Idaho v. Couer d’Alene Tribe, two Justices even expressed their desire to limit the Young exception to the Eleventh Amendment to cases in which plaintiffs do not have access to any state forum to decide whether they are entitled to injunctive relief under federal law.224 Although the other seven Justices rejected this more extreme position,225 their acknowledgment that “special sovereignty interests” may exist that militate against courts granting Ex parte Young injunctive relief has been recognized by lower courts.226

218. Id. at 485. 219. Id. 220. Seminole Tribe v. Florida, 517 U.S. 44, 74 (1996). 221. 25 U.S.C. § 2710 (2000). 222. Seminole Tribe, 517 U.S. at 76. 223. Idaho v. Couer d’Alene Tribe, 521 U.S. 261, 281, 287 (1997). 224. Id. at 274–76, 280 (Rehnquist, C.J. & Kennedy, J., concurring). 225. Id. at 270. 226. See, e.g., In re Ellett, 254 F.3d 1135 (9th Cir. 2001) (holding that an Ex parte Young action could be used to enjoin a state official from enforcing a bankruptcy court order allowing the state to collect unpaid taxes because an injunction barring the collection of the taxes would not intrude upon any special sovereignty interests of the state); Joseph A. v. Ingram, 262 F.3d 1113 (10th Cir. 2001) (holding that a suit seeking meaningful access to adoption services brought by abused and neglected children who had become wards of the State of New Mexico did not implicate the special sovereignty interests of the state); J.B. ex. rel. Hart v. Valdez, 186 F.3d 1280, 1287 (10th Cir. 2001) (noting that “[a] State’s interest in administering a welfare program at least partially funded by the federal government is not such a core sovereign interest as to preclude the application of Ex parte Young”).



Furthermore, in a recent decision, Federal Maritime Commission v. South Carolina State Ports Authority,227 the Court stated that “sovereign immunity applies regardless of whether a private plaintiff’s suit is for monetary damages or some other type of relief. . . . Sovereign immunity does not merely constitute a defense to monetary liability or even to all types of liability. Rather, it provides an immunity from suit.”228 In addi-tion, the Court indicated that the purpose of the doctrine of sovereign immunity is not merely to protect state treasuries, but also to “accord the States the respect owed them as joint sovereigns.”229 The significance of the Court’s dicta in Federal Maritime is difficult to gauge, given the re-cency of the decision. Taken together with its statements in Seminole Tribe and Couer d’Alene, however, the Court’s discussion of sovereign immunity in Federal Maritime could be reasonably interpreted as sug-gesting that the Eleventh Amendment bars plaintiffs from obtaining damages as well as injunctive relief in suits against the states.230 The logi-cal extension of this proposition is that the Ex parte Young action cannot be used to bypass the restrictions of the Eleventh Amendment.

c. Actions by the United States Against the States in General

With the limitations of Ex parte Young injunctive relief in mind, re-call that in addition to mentioning the Ex parte Young action as a poten-tial remedy against the states for violations of Title I, the Court in Garrett also noted that the United States could bring actions for monetary dam-ages against states on behalf of private individuals who experience dis-ability discrimination.231 The principle that the United States can file suit against an individual state in federal court—also referred to as plan waiver232—is a well-established exception to the jurisdictional bar of the Eleventh Amendment.233 The Supreme Court and commentators, how-ever, have only recently begun to define the contours of this exception,234 so the exact circumstances in which it applies are still uncertain.

227. 535 U.S. 743 (2002). 228. Id. at 765–66. 229. Id. at 765. 230. See Colker & Milani, supra note 165, at 1080 n.13; Ruth Colker, The Section Five Quagmire, 47 UCLA L. REV. 653, 659–60 (2000). 231. Bd. of Trs. v. Garrett, 531 U.S. 356, 374 n.9 (2001). 232. See supra text accompanying note 51. 233. See, e.g., United States v. Mississippi, 380 U.S. 128, 140 (1965) (noting that “nothing in [the Eleventh Amendment] or any other provision of the Constitution prevents or has ever seriously sup-posed to prevent a State’s being sued by the United States”); United States v. Texas, 143 U.S. 621, 642–46 (1892). 234. See Alden v. Maine, 527 U.S. 706 (1999); Caminker, supra note 33; Jonathan R. Siegel, The Hidden Source of Congress’s Power to Abrogate State Sovereign Immunity, 73 TEX. L. REV. 539 (1995).



i. The Supreme Court on Plan Waiver

The Supreme Court made some of its most recent—and, for that matter, most extensive—pronouncements on the so-called plan waiver doctrine in Alden v. Maine.235 In Alden, state probation officers brought an action against the state for violation of the Fair Labor Standards Act of 1938,236 federal legislation that purported to authorize private actions against the states in their own courts, regardless of whether they con-sented.237 Alden addressed the issue of whether Congress could subject the states to private suits for damages in state courts under federal law.238 Because the Eleventh Amendment refers only to the “Judicial power of the United States,”239 its text did not control the outcome of the case.240 The Court thus based its opinion on the sovereign immunity principles derived from the structure of the Constitution itself.241 In so doing, it held that Congress cannot abrogate the states’ immunity from suit in their own courts using its Article I powers.242

In dicta, the Court was careful to note that a state’s sovereign im-munity does not prevent the United States from filing suit against the states to enforce federal law, because the states consented to suits by the federal government as part of the “plan of Convention.”243 According to the Court, under the structure of the Constitution, “[a] suit which is commenced and prosecuted against a State in the name of the United States by those who are entrusted with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ differs in kind from the suit of an individual,” and is therefore permissible.244 In addition, the Court in-dicated that the United States could have sued Maine in state court on behalf of the plaintiffs if the United States itself had deemed the case of “sufficient importance” to file suit against the state.245 The United States, however, chose not to send a single attorney to Maine to participate in the litigation.246

Alden raises various issues about the scope of the plan waiver ex-ception to sovereign immunity. The Court’s dictum regarding suits “by

235. 527 U.S. 706. 236. Id. at 711–12 (citing 29 U.S.C. § 201 et seq. (1994 ed. and Supp. III) (current version at 29 U.S.C. §§ 201–219 (2000)). 237. See id. at 712 (citing 29 U.S.C. § 201 et seq. (1994 ed. and Supp. III) (current version at 29 U.S.C. §§ 216(b), 203(x))). 238. See Alden, 527 U.S. at 712. 239. U.S. CONST. amend XI. 240. See Alden, 527 U.S. at 730. 241. See id. at 713 (stating that the states’ immunity from suit is a “fundamental aspect of the sov-ereignty which the States enjoyed before ratification of the Constitution”); see also id. at 730–31 (con-firming that the states’ immunity from suit “inheres in the system of federalism established by the Constitution”). 242. See id. at 731–54. 243. Id. at 755. 244. Id. (citing U.S. CONST. art. II, § 3). 245. Id. at 759–60. 246. Id. at 759.



those entrusted with the constitutional duty” to oversee execution of the laws leaves in question the matter of whether the form of suit by the United States is a relevant consideration in determining whether it falls within the scope of plan waiver.247 Likewise, the Court’s dictum regard-ing the sufficiency of a lawsuit’s importance to the United States, consid-ered in conjunction with its emphasis on the form a lawsuit by the United States must take, raises the issue of whether the sufficiency of the United States’s interests takes primacy over the form of the lawsuit in determin-ing whether it is within the scope of plan waiver.248

ii. Defining the Scope of Plan Waiver

Professor Evan Caminker has addressed the issues raised by the Supreme Court’s dicta in Alden in attempting to determine with greater specificity when a given lawsuit can be said to fall within the category of lawsuits against which states waived their immunity as part of the consti-tutional plan.249 Professor Caminker argues that whether or not the plan waiver exception applies depends primarily on whether the United States is a “real party in interest” to a dispute.250 The structural form of the liti-gation, he suggests, is only of ancillary importance in determining the applicability of the exception.251 Emphasizing the substance of a dispute over its form in determining the applicability of plan waiver, Professor Caminker argues, is consistent with the Supreme Court’s “originalist methodology,” and therefore doctrinally sound.252

Despite the fact that Professor Caminker persuasively argues that the structural form of litigation should be irrelevant in determining whether a suit falls within the scope of plan waiver, the Supreme Court has indicated that the form of litigation is a consideration in the plan waiver calculus.253 It is therefore instructive to focus on the dimensions of form and substance in laying out the various conceptions of the scope of plan waiver.

The narrowest conception of the scope of plan waiver is that it in-cludes only suits brought or closely overseen by an executive branch offi-cial to defend “core proprietary interests” of the United States.254 Con-versely, the broadest conception of the scope of plan waiver is that it

247. See id. at 755. 248. Cf. id. at 759–60. 249. See Caminker, supra note 33, at 101–31. 250. See id. at 113 (“[T]he dispositive factor in triggering the waiver is the United States’ interest in the dispute with a state.”). 251. See id. at 119–31. 252. See id. at 95. 253. See Alden, 527 U.S. at 755–56; Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 785 (1991) (suggesting that plan waiver is limited to suits “at the instance and under the control of responsible federal officers”); see also James E. Pfander, Waiver of Sovereign Immunity in the “Plan of Conven-tion,” 1 GEO. J.L. & PUB. POL’Y 13, 24 (2002) (noting the Court’s apparent willingness to limit the scope of plan waiver to suits in which executive branch officials have a role). 254. Cf. Caminker, supra note 33, at 114.



encompasses suits filed by any litigant to vindicate any interest conferred by a federal statute, regardless of whether the United States directly shares in that interest.255 Such suits arguably fit within the plan waiver exception because they involve the indirect vindication of a general fed-eral regulatory interest.256 Between these two extremes lies a gray area of sorts, in which the scope of plan waiver may be said to include any number of suits in which the United States has some degree of interest and some degree of direct involvement.257 All that can be said for certain about the Court’s conception of the scope of plan waiver is that a suit is more likely to fall within plan waiver the more closely the suit’s sub-stance and form involve the United States.258

d. Applying Conceptions of Plan Waiver to Suits Under ADA Title I

Recall that ADA Title I plaintiffs must file charges with the EEOC and allow the EEOC to complete various administrative procedures be-fore a Title I lawsuit may be filed.259 Using the outcome of these admin-istrative procedures as a means of categorization, there are three types of ADA Title I plaintiffs involved in lawsuits against state governments: (1) those for whom the DOJ initiated suit after the EEOC found reason-able cause to proceed (DOJ plaintiffs);260 (2) those who obtained a right-to-sue letter from the DOJ after the EEOC found reasonable cause to proceed (individual reasonable cause plaintiffs);261 and (3) those who ob-tained a right-to-sue letter from the EEOC after their complaints were dismissed by the EEOC (dismissed plaintiffs).262 The differences be-tween these three types of plaintiffs are relevant to determining whether their suits fall within the scope of the plan waiver exception. If the suits fall within the plan waiver exception, then the plaintiffs should be able to receive monetary damages in their suits against state defendants, regard-less of the Eleventh Amendment.

Although the United States has no proprietary interest in enforcing ADA Title I,263 and although enforcing Title I would appear merely to vindicate personal interests on behalf of citizens, in doing so the United

255. See id. at 118 (describing Professor Siegel’s notion that plan waiver should be interpreted to include all federal private rights of action because these suits all serve an indirect federal regulatory interest); see also Siegel, supra note 234, at 564–69. 256. See Caminker, supra note 33, at 118. 257. See, e.g., Id. at 117–18 (describing interests that may fit within the boundaries of this analysis as a “[federal] regulatory interest in controlling state behavior,” an interest in “deterring future state misconduct,” and an interest in “creating favorable precedent regarding [a] statute’s proper interpreta-tion”). 258. See, e.g., supra notes 249–57 and accompanying text. 259. See supra notes 98–107 and accompanying text. 260. See supra notes 104–06 and accompanying text. 261. See supra notes 104–06 and accompanying text. 262. See supra notes 102–03 and accompanying text. 263. See generally Caminker, supra note 33, at 114–15 (discussing proprietary interests).



States asserts its general regulatory interest in controlling state behav-ior.264 The exact nature of this interest is, in fact, codified in the general provisions of the ADA, which indicate that one of the purposes of the Act is to ensure that the federal government has a “central role” in the enforcement of the standards it sets forth.265 This reasoning clearly ap-plies to suits by DOJ plaintiffs and individual reasonable cause plaintiffs. Admittedly, it does not apply to suits by dismissed plaintiffs, because the United States cannot be said to have a regulatory interest in controlling state behavior in the context of a suit that one of its administrative agen-cies decided there was no reasonable cause to pursue.

The fact that the United States’s general regulatory interest in con-trolling state behavior may be “intangible”266 is offset in the instances of DOJ plaintiffs and individual reasonable cause plaintiffs by the close in-volvement of the United States in their lawsuits.267 As far as DOJ plain-tiffs are concerned, executive officers actually bring and oversee their lawsuits. In fact, DOJ lawsuits fit well within the plan waiver exception. If the DOJ had the resources to litigate on behalf of every Title I plaintiff aggrieved by a state employer, then it would be able to avoid the restric-tions of the Eleventh Amendment for each of those plaintiffs.268 The fact of the matter, however, is that there are administrative limitations on the DOJ’s ability to file suit on behalf of Title I plaintiffs, so most reasonable cause plaintiffs must file private suits on their own behalf.269

Various factors militate in favor of the conclusion that private suits filed by individual reasonable cause plaintiffs fall within the scope of plan waiver, even if they do not do so as apparently as suits by DOJ plain-tiffs.270 The primary reason suits filed by individual reasonable cause plaintiffs fit into the plan waiver exception is that officials from the EEOC and the DOJ are initially involved in oversight of these suits.271 EEOC officials investigate the charges filed by individual reasonable cause plaintiffs, conciliate on their behalfs, and refer the charges to the DOJ once the conciliation fails.272 DOJ officials then become responsible for reviewing the charges and issuing right-to-sue letters to individual

264. See generally id. at 117–18 (discussing the sufficiency of a regulatory interest in qualifying a suit for the plan waiver exception). 265. See 42 U.S.C. § 12101(b)(3) (1994). 266. See Caminker, supra note 33, at 114–15. 267. See supra notes 105–06 and accompanying text. 268. But see United States v. Miss. Dep’t of Pub. Safety, 159 F. Supp. 2d 374, 377 (S.D. Miss. 2001) (holding that the Eleventh Amendment barred an ADA lawsuit for money damages brought by the United States on behalf of a private individual against the state, because while Title I can be enforced against the states by the United States in actions for damages, these actions must be brought to rem-edy a pattern or practice of discrimination, not to vindicate the rights of a private individual). 269. See, e.g., Siegel, supra note 234, at 556 (noting the expense of using the United States “litiga-tive resources” in each suit). 270. See infra notes 271–74 and accompanying text. 271. See supra notes 100–07 and accompanying text. 272. See supra notes 100–07 and accompanying text.



reasonable cause plaintiffs.273 The administrative oversight of individual reasonable cause plaintiffs’ suits thus satisfies the form requirement of the plan waiver exception.274 As a result, it seems that individual reason-able cause plaintiffs, like DOJ plaintiffs, are justified in filing suit in fed-eral court for monetary damages against states for violations of Title I.

2. Post-Garrett Remedies Under Title II

To reiterate, the Supreme Court’s holding in Garrett did not apply to ADA Title II, because, as the Court noted, Title II’s remedial provi-sions differ from those of Title I, so disposition of the issue of whether Title II is appropriate legislation under Section 5 of the Fourteenth Amendment would have required consideration of matters that the par-ties in Garrett did not bring before the Court.275 Similarly, the Court’s discussion of alternative remedies in footnote nine did not necessarily apply to Title II.276 Based on the circumstances surrounding Medical Board v. Hason and the pro-immunity character of the Title II circuit split, however, when the Court resolves the issue of the availability of monetary damages under Title II, injunctive relief and suits for damages by the United States will take on the same relevance as remedies for dis-ability discrimination under Title II as they have under Title I.277 The is-sue of how well-suited these remedies are to Title II is thus particularly pertinent.

a. Ex parte Young Actions Under Title II

Title II is concerned with ensuring that disabled individuals are not denied the benefits of public services, programs, and activities.278 Be-cause plaintiffs that file suit under Title II typically wish to gain access to public services, programs, and activities,279 the factors that limit the effec-tiveness of injunctive relief under Title I are not present under Title II.280 In fact, Title II violations are particularly conducive to injunctive relief because they involve situations in which disabled individuals wish to compel public entities to take some sort of affirmative action that pre-vents their interests from continuing to be neglected.281

At least one decision pre-dating the Supreme Court’s tacit approval of Ex parte Young actions under Title II in Garrett suggests that certain

273. See supra notes 105–06 and accompanying text. 274. See supra note 253 and accompanying text. 275. Bd. of Trs. v. Garrett, 531 U.S. 356, 360 n.1 (2001). 276. See id. at 374 n.9. 277. See supra notes 135–57 and accompanying text. 278. 42 U.S.C. § 12132 (2000); see also 28 C.F.R. § 35.130 (2002). 279. See, e.g., TECHNICAL ASSISTANCE MANUAL, supra note 114, §§ II-3.2000–II-3.4300 (illustrat-ing various scenarios in which plaintiffs might file suit under Title II). 280. See supra notes 189–219 and accompanying text. 281. See TECHNICAL ASSISTANCE MANUAL, supra note 114, §§ II-3.2000–II-3.4300, II-6.0000.



statutory interpretation complications bar Title II Ex parte Young suits.282 In Walker v. Snyder, an inmate with a vision impairment filed suit in the United States District Court for the Northern District of Illinois against a prison official, alleging violations of ADA Title II’s accommodation pro-visions for the official’s failure to provide him with books on tape and a brightly lit cell.283 On appeal, the Seventh Circuit held that the plaintiff’s claim could not proceed against the state in federal court.284 The court concluded that only public bodies as entities may be held liable under Ti-tle II,285 and an Ex parte Young suit is one against a state officer as an in-dividual, not against the state as an entity.286 Therefore, a suit resting on the Young doctrine cannot support relief under Title II of the ADA.287

Because of the Supreme Court’s endorsement of Ex parte Young actions in Garrett, the validity of Walker is questionable.288 Indeed, since Garrett, federal courts have been particularly receptive to Ex parte Young actions for injunctive relief under Title II.289 Precedential consid-erations alone, however, are not all that counsel against widespread adoption of the Seventh Circuit’s rationale in Walker. The validity of the Seventh Circuit’s decision on the availability of Ex parte Young injunc-tive relief hinges on its conclusion that Title II of the ADA does not permit personal liability.290 This conclusion conflicts with the basic canon of statutory interpretation that a remedial statute is to be broadly con-strued so as best to effectuate the remedies it provides.291 The ADA is a remedial statute,292 and because the overarching consensus of courts is that monetary damages are unavailable under ADA Title II,293 plaintiffs’ ability to obtain relief rests heavily on Ex parte Young. Thus, interpret-ing Title II to permit personal liability, and therefore allow Ex parte Young relief, is consistent with the broad remedial purposes of the ADA.

282. See Walker v. Snyder, 213 F.3d 344, 347 (7th Cir. 2000). 283. Id. at 345. 284. Id. at 347. 285. See id. at 346. 286. Id. at 347. 287. Id. 288. See, e.g., Boudreau v. Ryan, No. 00C 5392, 2001 WL 840583, at *6 n.5 (N.D. Ill. May 2, 2001) (calling into question the Seventh Circuit’s holding in Walker after Garrett). 289. See, e.g., Garcia v. S.U.N.Y. Health Scis. Ctr., 280 F.3d 98, 99 (2d Cir. 2001); Randolph v. Rodgers, 253 F.3d 342, 345–46 (8th Cir. 2001) (holding that the Eleventh Amendment did not prevent a hearing-impaired inmate from seeking prospective injunctive relief in federal court against a state prison official in her official capacity for violations of the ADA that arose when the official refused to provide the inmate with a sign language interpreter during medical visits and prison proceedings); Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509, 510 (E.D. Pa. 2001) (holding that a state official can be sued in her official capacity under ADA Title II). 290. See Walker, 213 F.3d at 346. 291. See, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 276 (1982) (discussing the broad construc-tion of Title VII); Corning Glass Works v. Brennan, 417 U.S. 188, 208 (1974) (describing the Equal Pay Act as “broadly remedial” and indicating “it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve”). 292. See 42 U.S.C. § 12101 (2000) (outlining the purpose of the ADA). 293. See supra notes 151–57 and accompanying text.



b. Suits for Damages by the United States Under Title II

Recall that an individual may file suit in federal court against a pub-lic entity under Title II without first filing a charge with an administrative agency.294 The only conception of plan waiver into which an independent suit, such as this one, would fit would be that in which the waiver is as-sumed to encompass all federal statutory private rights of action, simply by virtue of their indirect service of a federal regulatory interest in con-trolling state behavior.295 The Supreme Court has already indicated that suits in which an intangible federal regulatory interest is the sole basis for qualifying for the plan waiver exception fall outside the exception’s scope.296 Therefore, a suit filed against a state independently pursuant to Title II would appear not to fall within the plan waiver exception.

Title II does allow an individual to file an administrative complaint with an appropriate federal agency instead of proceeding directly to liti-gation.297 Unlike Title I, however, Title II does not assign administrative tasks to a single agency.298 The DOJ is slated as the default agency for evaluating complaints,299 but complaints may be filed with any federal agency that provides funding to a public entity that is the subject of a complaint.300 The United States certainly has a strong general regulatory interest in lawsuits filed to prevent states from violating the provisions of Title II, and, inevitably, some Title II plaintiffs will file complaints with federal agencies before filing suits individually. The administrative bur-dens of taking this ill-defined course of action301 will likely deter many from doing so, but in cases where Title II plaintiffs do proceed through administrative channels, the procedure plaintiffs undergo will be indis-tinguishable from that which applies under Title I.302 Therefore, suits filed against states by Title II plaintiffs that have exhausted their admin-istrative remedies should, like their counterparts under Title I, fall within the plan waiver exception.

IV. RECOMMENDATION

In Garrett, the Court did not articulate a comprehensive remedial scheme for lower federal courts to apply in ADA cases involving state defendants.303 It clearly precluded Title I plaintiffs from obtaining mone-

294. See supra notes 112–15 and accompanying text. 295. See Caminker, supra note 33, at 117–18. 296. See id. at 118. 297. See 28 C.F. R. § 35.170(c) (2002); TECHNICAL ASSISTANCE MANUAL, supra note 114, § II-9.2000. 298. See 28 C.F.R. § 35.190; TECHNICAL ASSISTANCE MANUAL, supra note 114, § II-9.2000. 299. See 28 C.F.R. § 35.170(c); TECHNICAL ASSISTANCE MANUAL, supra note 114, § II-9.2000. 300. See 28 C.F.R. § 35.170(c); TECHNICAL ASSISTANCE MANUAL, supra note 114, § II-9.2000. 301. For a description of the process used to determine whether an administrative agency has ju-risdiction over a complaint, see 28 C.F.R. §§ 35.170(c), 35.171(a). 302. Compare 28 C.F.R. §§ 35.171(a), .172–.74, with supra notes 100–06 and accompanying text. 303. See Bd. of Trs. v. Garrett, 531 U.S. 356, 374 n.9 (2001).



tary damages as a remedy for disability discrimination by the states, but it did not explain in any great detail the rationale justifying the availabil-ity of the alternative remedies it mentioned, the scope of those remedies, or whether those remedies even apply in the context of Title II.304 This lack of guidance has placed lower federal courts in the difficult position of developing the boundaries of the remedial framework that the Court alluded to, but did not define, in a way that simultaneously preserves the states’ sovereignty and vindicates the rights of Title I and Title II plain-tiffs that sue the states. It is apparent that the alternative remedies men-tioned by the Court in Garrett305 have varying degrees of utility as applied to Title I and Title II. Thus, one issue facing courts is whether there is some legally principled manner in which to acknowledge these variations and administer the remedies accordingly.

ADA litigants and courts should recognize that Ex parte Young in-junctive relief has limited remedial utility under Title I.306 An Ex parte Young action allows for prospective relief, which, in the context of em-ployment discrimination, includes hiring, reinstatement, and promo-tion.307 If implemented, these remedies threaten instability and discom-fort in the working environment.308 Yet, since Garrett, courts have shown a tendency to allow Ex parte Young injunctive relief under Title I.309 This tendency is certainly preferable to denying ADA plaintiffs any and all relief for state-initiated disability discrimination, but it leaves the Su-preme Court’s invitation to allow suits for damages by the United States unanswered.

304. See id. 305. In addition to the alternative remedies mentioned in Garrett, at least one commentator has suggested that ADA plaintiffs can utilize 42 U.S.C. § 1983 to sue state officials in their individual ca-pacities in federal court for money damages. See Note, 112 YALE L.J. 353 (2002). This commentator reasons that even though the ADA itself provides for a comprehensive remedial scheme, that scheme has been significantly altered by the Supreme Court’s recent Eleventh Amendment jurisprudence, so § 1983 actions should be allowed as an alternative remedy for state-initiated disability discrimination. While it is beyond the scope of this note to discuss the Supreme Court’s § 1983 jurisprudence, three obvious criticisms of the argument just described should be mentioned briefly. First, the fact that sov-ereign immunity prevents suits for damages against states under the ADA does not alter the fact that at the time the ADA was drafted, Congress intended a comprehensive remedial scheme to exist as part of the statute. This comprehensive remedial scheme did not include § 1983 within its scope. Therefore, it will likely be difficult for ADA litigants to justify to federal courts, ex post, the applicabil-ity of § 1983 as a remedial mechanism for state disability discrimination. Second, as a more practical matter, the Supreme Court did not mention § 1983 as a potential remedy for state disability discrimi-nation in Garrett footnote nine. Thus, although it undoubtedly “makes sense” to allow a § 1983 rem-edy, id. at 357, there is no concrete legal basis for doing so. Third, even if federal courts did allow ADA plaintiffs to file § 1983 actions against state officials, those plaintiffs would still have to contend with the qualified immunity defense available to the officials they sued. The qualified immunity de-fense could substantially limit plaintiffs’ prospects of actually obtaining the damages for which they filed suit. 306. See supra notes 186–230 and accompanying text. 307. See supra notes 180–85, 198–99 and accompanying text. 308. See supra notes 189–93, 201–02 and accompanying text. 309. See supra note 211 and accompanying text.



Federal courts should favor the latter remedy in the context of Title I. Suits against the states by the United States for damages are permissi-ble as part of plan waiver,310 and a suit can properly be said to be “by the United States” when the United States has some degree of interest in its substance and some degree of direct involvement in its form.311 By inter-preting this exception to Eleventh Amendment immunity to include suits filed by individual reasonable cause plaintiffs,312 federal courts will be able to provide monetary damages to litigants whom the DOJ simply does not have the resources to represent.

In contrast, federal courts should generally favor Ex parte Young in-junctive relief as a remedy for Title II violations. Some courts might ini-tially hesitate to allow Ex parte Young actions under Title II because of statutory interpretation concerns,313 but Title II can be soundly inter-preted to allow Ex parte Young actions to proceed.314 In most instances, the injunctive relief available to Title II plaintiffs under Ex parte Young will be particularly well-suited to preventing the continuation of the dis-criminatory practices that cause them to file suit.315

Courts, however, must also recognize that plan waiver will encom-pass certain suits that arise under Title II if those suits proceed through the appropriate administrative channels or if they are brought by the DOJ.316 They should not automatically disregard the plan waiver excep-tion as being inapplicable to Title II. Rather, they must keep track of the nature of the administrative proceedings that a plaintiff has undergone, since one of the touchstones for determining whether a given suit falls within the plan waiver exception is the form the suit takes.317

V. CONCLUSION

The issue of what remedies are available to the victims of state-initiated disability discrimination is one that stems from a much broader debate over the protection of civil liberties in a federalist system. This note has suggested one manner in which federal courts can strike a bal-ance between sovereign immunity and civil rights in administering reme-dies under Title I and Title II of the ADA. The effectiveness of injunc-tive relief is a function of the context in which the relief is ordered. Likewise, the utility of suits for damages by the United States depends on how narrowly or broadly the scope of plan waiver is defined. The framework offered here gives federal courts a legally principled manner

310. See supra notes 48–52, 232–33 and accompanying text. 311. See supra notes 249–58 and accompanying text. 312. See supra notes 270–74 and accompanying text. 313. See supra notes 282–87 and accompanying text. 314. See supra notes 266–69 and accompanying text. 315. See supra notes 288–93 and accompanying text. 316. See supra notes 299–302 and accompanying text. 317. See supra notes 253, 301–02 and accompanying text.



in which to administer remedies under Title I and Title II. The existence of this framework demonstrates that, although the Supreme Court’s Eleventh Amendment jurisprudence has placed limitations on the reme-dial options available to private plaintiffs filing suit under the ADA, the consequences of these limitations are not as dire as one might first sup-pose. The Garrett Court, as the saying goes, may have closed a door, but it opened two windows: Ex parte Young relief and plan waiver.



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